WE’RE CRAMPED AS HELL, AND WE WON’T TAKE IT ANYMORE—PLOTTING A CLASS ACTION DISABILITY CLAIM ON BEHALF OF THE VERY TALL AGAINST AIR CARRIERS FOR A FAILURE TO ACCOMMODATE By Brandon Riley* * J.D. Rutgers University School of Law–Camden, 2013; B.S. Iowa State University, 2002. I would like to thank my wife Amy for her love and her patience, and for supporting the 123 124 RUTGERS LAW JOURNAL [Vol. 43:123 I. INTRODUCTION I write today in an effort both to raise awareness for and to correct one of modern life‘s most overlooked yet egregious injustices: tall people simply cannot fit into airplane seats. You, the reader, have no doubt been crammed into your own seat, leafing through SkyMall, when you noticed a very tall man, head cocked to the side to avoid the plane‘s ceiling, inching down the aisle. And you felt a certain pity. ―My gosh,‖ you thought as you surveyed your own lack of legroom, ―how is he going to fit?‖ The answer, of course, is that he will not. That guy you felt sorry for on the plane might well have been me. I am six-foot nine, a height I reached before my eighteenth birthday. I have been a giant all my life.1 There are, of course, plenty of advantages that come with being very tall. For instance, I can simultaneously scan two aisles while shopping for food at the grocery store. Viewing public events or concerts is never a problem. Supposedly, at some point I will earn substantially more money than folks of more average height.2 But there are also several challenges that only we, the very tall, know well; such as, the constant state of vigilance required to pass through doorways and basements, buying clothes that fit, hearing conversations when everyone is standing at cocktail parties, and of course, the subject of this Note: the inability to sit in an economy-class airline seat. But tall people do fit in the exit row. If you have flown recently, you probably made your airline reservation online, and absent special frequent flier privileges, you could not reserve an exit row seat more than twenty-four hours in advance of the travel day, even if you wanted to pay the additional fee that airlines often impose for the privilege of extra legroom.3 Instead, decision to return to school and pursue a law degree. I would also like to thank Professor Jason Cohen for his mentorship and guidance. Thank you to David Gillette for the above cartoon and the drawings throughout (used with permission), and David Carboni, Ken Householder, and Professor David Frankford for editorial feedback. 1. For example, I was five feet tall in first grade. 2. See Dwyer Gunn, How’s the View Up There?: A Q&A With the Author of The Tall Book, FREAKONOMICS (Mar. 2, 2010, 12:30 PM), http://www.freakonomics.com/2010/03/02 /hows-the-view-up-there-a-qa-with-the-author-of-the-tall-book; see also Meg Donahue, Why Tall People Make More Money, CNN (Feb. 2, 2007, 10:26 AM), http://www.cnn.com/2007 /US/Careers/02/02/cb.tall.people/index.html; Cristen Conger, Tall People Earn $789 More Per Inch, HOWSTUFFWORKS (Aug. 8, 2011), http://blogs.howstuffworks.com/2011/08/08/tall- people-earn-789-more-per-inch. I‘m still waiting for this fringe benefit to kick in. 3. See, e.g., Economy Plus Product Details; Terms & Conditions, UNITED AIRLINES, http://www.united.com/CMS/en-US/products/travelproducts/Pages/EconomyPlus.aspx (last 2013] DISABILITY CLAIM: HEIGHT ON AIRPLANES 125 airlines reserve those seats for their high-status customers, only releasing them to the general public at the last minute on a first-come, first-serve (and willingness to pay) basis.4 It is precisely this injustice that this Note seeks to address. Initially, I conceived of two different legal theories to attack this problem: under a breach of contract theory or under a disability theory. The breach of contract claim is simple—upon purchase of a ticket, the airline promises to provide travel from origin to destination in a seated position.5 Anyone of any stature knows this ―seated position‖ is an impossible dream in an airplane seat.6 But, the lack of accommodation of this type (e.g. public seating) happens frequently enough7 that being very tall is really a type of disability. Sure, in most situations, extraordinary height is probably just an inconvenience, but it becomes a significant issue in an airplane, which is a tightly controlled environment where access requires that everyone purchase a seat.8 Therefore, since airlines are required to accommodate disabled visited Aug. 28, 2013); SkyMiles Reservation Benefits, DELTA AIRLINES, http://www.delta.com/skymiles/about_skymiles/benefits_at_glance/reservation_benefits/index .jsp (last visited Jan. 15, 2012); Booking—Emergency Exit Row, AM. AIRLINES, http://www.aa.com/i18n/agency/Booking_Ticketing/Booking/exit_row_procedures.jsp (last visited Jan. 15, 2012). 4. See Booking—Emergency Exit Row, AM. AIRLINES, http://www.aa.com/i18n/agency /Booking_Ticketing/Booking/exit_row_procedures.jsp (last visited Jan. 15, 2012). 5. See, e.g., DELTA AIRLINES, DELTA DOMESTIC GEN. RULES TARIFF, RULE 1 A–B (2012) (setting forth Delta‘s Contract of Carriage and making clear that ticket purchase constitutes acceptance of the contract). Delta Airlines‘ contract is generally representative of the typical Contract of Carriage. See, e.g., AM. AIRLINES CONDITIONS OF CARRIAGE (2012), http://www.aa.com/i18n/customerService/customerCommitment/conditionsOfCarriage.jsp (last visited Apr. 14, 2013); SW. AIRLINES CONTRACT OF CARRIAGE—PASSENGER (2011), http://www.southwest.com/assets/pdfs/corporate-commitments/contract-of-carriage.pdf (last visited Apr. 14, 2013). 6. ―Seated position‖ is left undefined in the contracts. See, e.g., DELTA RULES, supra note 5, at 3. But the plain meaning definition is often circular. See Seat Definition, MERRIAM WEBSTER‘S ONLINE DICTIONARY, http://www.merriam-webster.com/dictionary/seated (last visited Apr. 14, 2013) (defining ―seat‖ as ―to put in a sitting position.‖). However, it can also mean ―to fit correctly in a seat.‖ Id. Naturally, that definition in turn opens the door to defining ―fit correctly.‖ But the common sense view, one most people imagine if asked to ―picture someone sitting in a chair,‖ is probably spine and legs at close to a ninety-degree angle, with two feet on the floor. 7. For example, tall people cannot reasonably fit in: theater seats, driver/passenger/back seats of automobiles, many modes of mass transportation, city bus seats, parking lot shuttles, etc. 8. See FAA Use of Safety Belts Rule, 14 C.F.R. § 91.107(3) (2011) (providing that, unless you are an infant, ―each person on board a U.S.-registered civil aircraft . must occupy an approved seat or berth with a safety belt . .‖); see also FAA Passenger 126 RUTGERS LAW JOURNAL [Vol. 43:123 passengers,9 proving that extraordinary height is a disability is the best route to achieve accommodation on airplanes, and I will reserve the contract claim for another day. Accordingly, this Note examines the feasibility, procedure, and substantive law around bringing a class action claim on behalf of the very tall against the airlines for height discrimination on the basis of disability. This action, in turn, assumes that someone very tall asserted a right of disability accommodation on an airplane on the basis of height. Of course, a concomitant theme throughout this Note is whether being extraordinarily tall is, in fact, a disability. Part II sets forth the requested remedy—preferential access to the exit row—a requirement for both class actions and disability claims. Part III examines the viability of class certification and maintenance of the suit on behalf of the very tall. Finally, Part IV explores classifying exceptional height as a disability under the Americans with Disabilities Act (ADA) and pursuing the claim. But because airlines are exempt from the ADA, its analytical framework will be applied instead to accommodation of disabled passengers under the Air Carrier Access Act (ACAA) as the best route for relief. The Note concludes with a summation and a call to action. This situation on airplanes for tall folks is dire, and although the tone herein is light, the problem is real and needs to be addressed. II. PROPOSED REMEDY The remedy section might ordinarily come after the problem has been fully set forth, but I thought it best to include it first because tall people not fitting into airline seats is a straightforward problem, and the proposed remedy necessarily permeates each aspect of the analysis, and by extension, this Note. The remedy is deceptively simple and easy to keep in mind: class members must be given preferential access to the exit row seats.10 The Information Rule, 14 C.F.R. § 91.517(d) (2006) (requiring that ―[e]ach passenger required by § 91.107(a)(3) to occupy a seat or berth shall fasten his or her safety belt about him or her and keep it fastened while any ‗fasten seat belt‘ sign is lighted.‖). 9. See 49 U.S.C. § 41705(a)(1) (2003) (preventing discrimination against disabled passengers in airline travel). 10. However, airlines can expressly refuse to seat ―customers with disabilities‖ in exit row seats. See, e.g., Seats, JETBLUE, http://help.jetblue.com/SRVS/CGI- BIN/webisapi.dll?New,Kb=askBlue,case=obj(382583) (last visited Apr. 14, 2013); see also FAA Rule on Exit Seating, 14 C.F.R. § 121.585 (2007). But it must not be a hard-and-fast rule because there are several in the rich constellation of cognizable disabilities under the ADA that would not affect a person‘s ability to open the emergency door or comprehend instructions.